Employment in Canada is not “at will”. But is at will employment really all it’s cracked up to be? Does it make the United States a friendlier place for employers?

We don’t think so and we are happy to engage Jeff Polsky in the discussion.

Jeff started this on the California Employment Law blog with a post, Like a Whole Different Country, suggesting that being an employer without at will employment was too scary to contemplate. Well, the fact is that employers in Canada are doing just fine, thank you very much, having traded the lottery of at will employment for the certainty of contract.

Not having at will employment means Canadian employers cannot terminate an employee at any time without notice or compensation, and for any reason that is not discriminatory. Instead, there must be just cause for termination (which, admittedly, has to be really bad behaviour) or notice or compensation must be provided (which, admittedly, can be many months’ worth at common law).

But – all that can be controlled by a contract that stipulates the amount of notice or compensation that is required to terminate without cause. As long as the contract is properly entered into and meets or exceeds the employment standards legislation (which in BC is between 1 and 8 weeks based on length of service), the agreed amount will stand. The employer will then know with certainty what it will cost to terminate.

We like that certainty in place of the huge risks US employers face. Even with at will employment, there are a large number of claims a terminated employee can make. Then, the employer may face an angry jury and there is no telling what the damage award might be.

And we’ll end by asking this question: How often do US employers actually use the at will doctrine to terminate without notice or compensation?